Can the Court Decide to Hear New Evidence After-the-Fact?

A recent Ontario decision raises the interesting procedural issue of whether a court has the authority to admit new evidence even after it has concluded hearing a Family Law matter.

The litigation involved competing motions by a father and a daughter. The daughter asked for the court to order the father to pay temporary child support, and the father resisted, asking the court for certain orders to be made in his favour instead. The court heard the motions, but reserved judgment on both.

Then, a week later, the father returned to court to try and provide new evidence that the company he controlled had been ordered into receivership – presumably to show that he could not afford to pay the daughter temporary support she sought. His evidence took the form of the copy of an order by another judge, in another court, simply declaring the father’s company was receivership; there was no other detail provided.

The court first had to consider the broader legal question whether it had the authority to allow the father to bring new evidence, even after the original motions had been heard. If so, then the court was still obliged to consider whether that authority should be exercised respecting the father’s new evidence in this particular case.

On that last point, the court summarized the task at hand:

The deeper issue that I am called upon to consider is whether [the father] has provided sufficient evidence to show that the motions should be reopened, and if so, on what terms?

After reviewing basic judicial principles, the court ultimately found that it did have the authority to re-open the argument, but that the father had not met the test to justify the court doing so in this case.

The court’s threshold determination was whether it had fulfilled its official function on the earlier motions; if so, the door was closed for any further evidence to be received. The legal term is “functus officio”, which is defined as “having discharged one’s duty” or as “a task performed.”

As it happened, in this case the judge had not yet issued a ruling, let alone granted any order that had formally been entered with the court. So the judge was not “functus officio” in this particular instance.

Next, the court also examined the Family Law Rules, to see whether it might prohibit the father’s evidence from being tendered at this relatively late stage. The purpose of the Rules, the court found, was to deal with cases in a just and fair manner; they included provisions specifically built-in allowing for flexibility and fairness. In the right circumstances, the Rules did allow further evidence to be filed even after the argument of the motion had been concluded.

With that said, the judge’s discretion was to be exercised “sparingly and with the greatest care”, although a “somewhat relaxed approach” could be applied in cases where the matter had been heard, but a decision had not yet been released. This was one of those cases.

Still, the admission of evidence was to be the exception, rather than the rule. Otherwise, it would be tantamount to inviting the parties to first hear argument and judicial comment on the evidence thus far, and then put together further evidence tailored to buttress their case.

In this case the father had not met the requisite test. As the court said:

While the test is more relaxed than it would be after a decision had been released the admission of that evidence is far from automatic. Here [the father] fails to meet even a relaxed test for admission.

The father had neither direct evidence nor any submissions to explain why the late-breaking receivership order, relating to a company that he held a 60% interest in, might affect either of the motions the court had already heard. He merely proffered a copy of a prior court order putting his company into receivership, but without explaining how it might affect his income.

The court said:

While the bar … is a low one, [the father’s] materials fail to clear even it.

The court declined to grant the order, and dismissed the father’s motion to introduce new evidence.

At Russell Alexander Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com